Nikapota V. Gunasekera

Present: Middleton J. and Wood Renton J.   July.17,1911

NIKAPOTA v. GUNASEKERA.

417-P. C. Matara, 1,385.

Conviction of accused-Magistrate may inquire into the previous history and antecedents of accused before awarding punishment,

A previous conviction may be proved or admitted before a court of first instance, after the conviction of the accused, for the purpose of enabling the Court to regulate the punishment within the limits of its jurisdiction in that respect under the law.

A previous conviction should not be regarded as proved unless a properly certified copy of the conviction is put in, and evidence given to clearly identify the accused with the person mentioned in it.

Evidence of an antecedent bad character is relevant after conviction; but no evidence to prove it should be accepted by the Court, except from persons of undeniable position and respectability, and then also only under the sanction of an oath or affirmation.

THE accused in this case was convicted of an offence under section 315 of the Penal Code with having caused hurt with a pair of scissors to her daughter. After the accused was found guilty, it was pointed out to the Magistrate that the accused had been convicted of causing hurt to her elder daughter and had been fined. The learned Magistrate (D. W. Arnott, Esq.) took the previous conviction into consideration and sentenced her to three months' imprisonment.

The accused appealed.

H. J. C. Pereira (with him Canekeratna), for the appellant.-The evidence of previous conviction in cases like this should not have been taken into consideration by the Magistrate. There is no law which authorizes the admission of such evidence in this case. The case does not fall within section 68 of the Penal Code. Evidence of character is inadmissible, unless the accused puts it in issue; there are exceptions to that rule, but this case does not fall within the exceptions (see Criminal Procedure Code, sections 408 and 409). If evidence of character is irrelevant before conviction, what law makes it relevant after conviction ? Where the Legislature has deemed it necessary to lead evidence of a previous conviction, it has made special provision to enable it to be done (see Criminal Procedure Code, section 253, and Ordinance No. 7 of 1899). The Legislature has also made provision for dealing with men of good character (see Criminal Procedure Code, section 325).

If evidence of character after conviction were to be admitted, it would open the door to much abuse. Counsel cited Reg. v. Alexander;1 Bastian Appu v. Davithamy; 2 Seneviratne v. Dias;3 Warusavitana v. Abiweera; 4 Sinnetamby v. Elayatamby; 5 Encyclopaedia of the Laws of England, vol. X., pp. 333 and 334.

Walter Pereira, K.C., S.-G., for the respondent.-Under the Evidence Ordinance (section 100) and the Criminal Procedure Code (section 6) the English law of evidence and procedure are introduced in matters where the Codes are silent. Under the English law the antecedents of the prisoner may be taken into consideration before passing sentence. See Halsbury's Laws of England, vol. IX., p. 427; R. v. Weaver.6

Apart from English law, even under our law the question of bad character is in issue when it comes to the question of sentence; section 325 of the Criminal Procedure Code implies that. How is the Court to know of the antecedents of the accused unless it inquires into it ?

The evidence of character may have to be on oath or affirmation.

H. J. C. Pereira, in reply.-Section 6 of the Criminal Procedure Code provides for a casus omissus. This is not a casus omissus. The Code fully provides for all cases in which it deems it necessary to lead evidence of bad character.

Cur. adv. vult.

July 17, 1911. Middleton J.-

The point reserved for two Judges in this case was whether a Police Magistrate, after his verdict on the evidence has been given, in entitled, except in cases provided for by section 68 of the Ceylo

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